Copyright law still murky in tech era

December 01, 2006|By Mike Hughlett, Tribune staff reporter

It seems a no-brainer that copying a DVD movie and reselling it should be illegal. But how about copying it to your iPod? Or, if you're a professor, copying snippets of "Citizen Kane" to illustrate a point in your class?

Well, the answer is "No, you can't" on the iPod. But academics can freely capture Kane's "Rosebud" moment and other highlights, courtesy of a decision by the U.S. Copyright Office that went into effect this week.

The rulings highlight the same murky legal frontier where copyright law meets burgeoning digital technology. It's a place shadowed by the question, "Where do the rights of digital-age property holders--be they movie studios or phone companies--end, and the rights of consumers begin?"

Such questions are dealt with by the Copyright Office, an arm of the Library of Congress. It helps decide what is legal by issuing exemptions to a landmark 1998 law, the Digital Millennium Copyright Act. The exemptions, issued every three years, are based on complaints about the law's shortcomings.

The digital copyright act is this country's way of complying with global intellectual-property treaties drafted in 1996. The treaties and the 1998 law were born when digital technology had begun upending the way music, video and other media were being delivered to consumers.

Owners of copyrighted media wanted to ensure their property was protected in the new digital world. TV studios, for instance, would be hard-pressed to sell video clips on the Internet if someone could copy them for resale without penalty.

So, the DMCA makes it a crime to circumvent the technological safeguards that movie and other media companies take in order to protect their property.

That protection is known as digital rights management, technology that locks up copyrighted material. For instance, a DVD is specially encrypted to prevent copies from being made.

The problem, Internet civil liberties advocates say, is the breadth of the DMCA and how intellectual-property owners are interpreting it.

The law has been used at times to deter innovation and competition--not piracy, says the Electronic Frontier Foundation, a San Francisco-based Internet civil-liberties group. A lawsuit over a garage door opener serves as an example, it says.

The courts disagreed, ruling that Skylink's remote didn't lead to unauthorized use of Chamberlain's software.

"I'm pretty sure Congress wasn't intending that people can only open their garage door with the approved doo-hickey," said Jennifer Granick, director of Stanford University Law School's Center for Internet and Society.

Granick believed similar behavior was afoot in the cell phone industry. So, on behalf of The Wireless Alliance, a Colorado firm that recycles cell phones, she petitioned the Copyright Office for an exemption to "unlock" cell phones.

Wireless carriers typically install software into the phones they sell, locking them into their network. So, if your wireless contract is expiring and you want to switch carriers, you can't use your old phone on a different network.

Wireless carriers argue that the lock is necessary for, among other things, making sure its copyrighted software is not infringed upon.

The Wireless Alliance argued that the lock was simply a way to restrict competition, making it more difficult for customers to switch carriers. The Copyright Office essentially agreed.

The Alliance's victory likely won't have a big effect on consumers. After a couple of years on one wireless network, many consumers would be happy to junk their old phone for a free or cheap phone on a new network.

Still, easing the ability to jump networks might appeal to consumers who've sunk a few hundred bucks into a smart phone and don't want to pay for a new one.

Another significant new exemption to the DMCA involves CDs. Computer security experts now clearly have the right to investigate and correct security flaws embedded in CDs.

The ruling stems from a CD security flap concerning Sony BMG, said Corynne McSherry, a staff attorney for the Electronic Frontier Foundation.

Last year, Sony BMG produced CDs that included particularly intrusive technology aimed at limiting copies. It left computers susceptible to viruses and other attacks.

Sony BMG got a big PR black eye from the incident, and ended up settling class-action suits from consumers.

The flaw was discovered and investigated by private computer-security experts. But by proving their case, it was not clear whether they were illegally breaking into Sony's copyrighted property. Now, with the Copyright Office ruling, it's clear that they can search for security flaws if they have reason to believe they exist, McSherry said.